Messerschmidt v. Millender: A Probable Cause Free-For-All

In Pierson v. Ray, the United States Supreme Court introduced the concept of immunity for government officials liable for damages under 42 U.S.C. § 1983; alleging that while immunity is not inherently mentioned in the statute, there is also no indication that Congress intended to eliminate commonlaw immunities. Since its inception, the policy behind qualified immunity has continuously evolved, and some have criticized its negative impact on the protections afforded under the Fourth Amendment. Moreover, the Supreme Court has gradually expanded the scope of qualified immunity in search and seizure cases by establishing the good-faith rule and broadening the “objective reasonableness” standard for a finding of probable cause. A recent qualified immunity case, Messerschmidt v. Millender, further expands the interpretation of probable cause and restores the defense that otherwise unreasonable conduct may be excused by approval of a magistrate—a justification the Court previously rejected.


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Kali Morris, Comment, Messerschmidt v. Millender: A Probable Cause Free-For-All, 48 Gonz. L. Rev. 431 (2013).

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David Kazemba J.D. Candidate 2014

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